Veteranclaims’s Blog

February 10, 2010

Competent Evidence versus Competent Medical Evidence, continuity-of-symptomatology, McCormick v. Principi, No. 98-48

However, Savage[v. Gober, 10 Vet. App. 488 (1997),] and 3.303(b) require only that a claimant submit competent evidence of a nexus between his present disability and his postservice symptomatology, 38 C.F.R. 3.303(b); Savage, supra.
To the extent that the Board required otherwise, i.e., “competent
medical evidence
associating his current eye symptomatology with
injury or disease during his active service”, the Board misapplied
the continuity-of-symptomatology criteria from Savage, supra.Id. at 49-50 (first-sentence emphasis added).
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-48

Mack A. McCormick, Appellant,

v.

Anthony J. Principi,

Secretary of Veterans Affairs, Appellee.

On Appellant’s Application for Attorney Fees and Expenses

(Argued February 20, 2002 Decided October 17,
2002 )

Daniel G. Krasnegor, of Washington, D.C., with whom Peter J.
Meadows, of Miami Beach, Florida, was on the pleadings, for the appellant.

Ann G. Gawalt, with whom Tim S. McClain, General Counsel; and
Joan E. Moriarty, Acting Assistant General Counsel, all of Washington, D.C
., were on the pleadings, for the appellee.

Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.

STEINBERG, Judge, filed the opinion of the Court. IVERS, Judge,
filed a dissenting opinion.

STEINBERG, Judge: The appellant, veteran Mack A. McCormick,
previously appealed through counsel a December 16, 1997, decision of the
Board of Veterans’ Appeals (Board or BVA) that had denied as not well
grounded his claim for Department of Veterans Affairs (VA) service
connection for loss of vision. See McCormick v. Gober, 14 Vet.App. 39, 41 (
2000). On August 18, 2000, the Court vacated that Board decision and
remanded the matter for readjudication. Id. at 50. Currently pending
before the Court is the appellant’s application, timely filed through
counsel, for attorney fees under the Equal Access to Justice Act, 28 U.S.C
. 2412(d) (EAJA). The Secretary has filed a response in opposition to
the application, and the appellant has filed a reply thereto. For the
reasons that follow, the Court will grant the EAJA application in part.

I. Relevant Background

The relevant background of this case on the merits is set out in full
in our prior opinion, McCormick, 14 Vet.App. at 41-43, and will not be
repeated here. In that opinion, the Court stated: “The appellant does
not, in essence, challenge the Board’s negative determination on well
groundedness, and in view of the Court’s holding [as to VA Veterans
Benefits Administration Letter 20-99-60 (the VBA Letter) (Aug. 30,
1999)], we need not review that determination.” Id. at 43. Citing
Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000), the Court went
on to vacate the Board decision and remand, for consideration by the Board
in the first instance, a matter not raised to or considered by the Board –
the applicability to the appellant’s case of the fire-related-case
provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1or
M21-1). In so doing, the Court set forth for Board consideration on
remand four questions about the applicability of and compliance with these
M21-1 fire-related provisions. McCormick, 14 Vet.App. at 44-45. The
Court went on to hold that the provisions of the VBA Letter, issued
subsequent to the December 1997 BVA decision, “were substantive in
nature and have the force of law”, thus requiring that VA request service
medical records and VA medical center records in all cases, prior to
determining well groundedness. Id. at 49. The Court then remanded the
matter for compliance with the VBA Letter, citing, inter alia, Karnas
v. Derwinski, 1 Vet.App. 308, 313 (1991). McCormick, supra. Finally,
the Court noted, under an opinion part entitled “Miscellaneous Matter”,
the following:
Finally, the Court notes that the Board, in its adjudication of
the instant claim, erred in its continuity-of-symptomatology
analysis. In order to avoid repetition of that error on remand, the
Court notes the following.

. . . In considering whether the veteran had submitted a well-
grounded claim pursuant to [38 C.F.R.] 3.303(b), the Board stated
the following:

[L]ay evidence submitted by the veteran . . . is probative
also to the extent that it suggests a continuity of
symptomatology from the veteran’s military service. 38 C.F.R
. 3.303(b). However, . . . [i]t is not sufficient to show
that the veteran reported problems with his vision or even that
he wore corrective lenses. In this case, competent medical
evidence is needed to identify the reason for the symptoms
described . . . . The veteran must submit competent medical
evidence associating his current eye symptomatology with
injury or disease during his active service.

[Record] at 5 (emphasis added). However, Savage[v. Gober, 10 Vet.
App. 488 (1997),] and 3.303(b) require only that a claimant submit
competent evidence of a nexus between his present disability and his
postservice symptomatology, 38 C.F.R. 3.303(b); Savage, supra.
To the extent that the Board required otherwise, i.e., “competent
medical evidence associating his current eye symptomatology with
injury or disease during his active service”, the Board misapplied
the continuity-of- symptomatology criteria from Savage, supra.

Id. at 49-50 (first-sentence emphasis added). The Court concluded:
Upon consideration of the foregoing analysis, the [record on
appeal], and the submissions of the parties, the Court vacates the
December 16, 1997, BVA decision and remands the matter for
expeditious further proceedings and issuance of a readjudicated
decision supported by an adequate statement of reasons or bases, see
38 U.S.C. 1110, 5107, 7104(a), (d)(1); 38 C.F.R. 3.303(b);
VBA Letter; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), all
consistent with this opinion . . . .

Id. at 50 (emphasis added).
The appellant then filed his EAJA application on December 4, 2001,
seeking $19,816.02 in attorney fees and $333.76 in expenses. Application (
Appl.) at 9. He argues in the application that he was a prevailing party
because he received a remand and that the position of the Secretary was
not substantially justified at the administrative stage because (1) the
Board failed to address the M21-1 provisions and (2) the Board erred in
its continuity-of-symptomatology analysis. Appl. at 3-6. In his March
20, 2001, response, the Secretary concedes prevailing-party status (
Response (Resp.) at 7) but argues that his position was substantially
justified (Resp. at 8-13). The Secretary also argues (for reasons that
will be enumerated below) that, if the Court grants the appellant’s
application, the attorney time for which the appellant seeks compensation
should be reduced by 38.1 hours. Resp. at 14-16. In his June 15, 2001,
reply to the Secretary’s response, the appellant reiterates his argument
that the Board was not substantially justified and also opposes the
Secretary’s request to reduce the number of hours. Reply at 5, 12.
The appellant then filed a July 18, 2001, motion to file a
supplemental application, with a supplemental application included seeking
an additional $2,801.03 in fees and expenses for the EAJA litigation
itself. On August 20, 2001, the Secretary filed a motion for
clarification and/or to stay response to the appellant’s supplemental
application. On September 6, 2001, the appellant filed
an opposition to the Secretary’s motion for a stay, along with a
further motion to supplement the initial application with another
supplemental application seeking (1) additional fees and expenses in
connection with the preparation of that opposition to the Secretary’s stay
motion and (2) apparently, certain fees and expenses not included in the
July 2001 supplemental application. The appellant’s supplemental
applications seek a total $3,506.23 in additional fees and expenses.
On February 11, 2002, the Secretary filed a notice of supplemental
authority (noting the issuance of Sachs v. Principi, 15 Vet.App. 414 (
2002)), an opposed motion for leave to file a supplemental response, and
his supplemental response. In that supplemental response, the Secretary
argues that the issuance of Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources, 532 U.S. 598 (2001),
Sumner v. Principi, 15 Vet.App. 256 (2001) (en banc), Vaughn v.
Principi, 15 Vet.App. 277 (2001) (per curiam order), and Sachs, supra,
has altered the prevailing-party landscape in such a way as to prevent the
appellant from establishing that he is a prevailing party based on the
remand he received in the case on the merits. Supplemental (Suppl.) Resp.
at 4-6. On February 13, 2002, the appellant filed a notice of
supplemental authority citing Cycholl v. Principi, 15 Vet.App. 355,
360 (2001), and stating that this opinion affects the discussion of
whether it was error for the Board not to apply the M21-1 provisions. The
appellant also filed, on February 15, 2002, (1) a notice of supplemental
authority citing Cole Energy Development Co. v. Ingersoll-Rand Co., 8 F.3d
607, 609 (7th Cir. 1993), and (2) an opposition to the Secretary’s
February 11, 2002, motion for leave to file a supplemental response.

II. Analysis
A. Jurisdiction
The appellant’s December 4, 2000, EAJA application was filed within
the 30-day EAJA application period set forth in 28 U.S.C. 2412(d)(1)(B
). In order to satisfy any applicable EAJA jurisdictional content
requirements, an application must contain the following: (1) A showing
that, by virtue of the Court’s remand, the applicant is a prevailing party
within the meaning of the EAJA; (2) a showing that the applicant is a
party eligible for an award under the EAJA because his or her net worth
does not exceed $2,000,000; (3) an allegation that the position of the
Secretary was not substantially justified; and (4) an itemized fee
statement. See 28 U.S.C. 2412(d)(1)(A), (1)(B),
(2)(B); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). The
appellant’s EAJA application was thus timely filed and satisfies any
EAJA jurisdictional content requirements. See ibid.
B. Prevailing-Party Status
In order to receive an EAJA award, an EAJA applicant must be a
prevailing party. See 28 U.S.C. 2412(d)(1)(A) (“court shall award to a
prevailing party . . . fees and other expenses”); Sumner, 15 Vet.App. at
260-61. Prevailing-party status is achieved by satisfaction of either of
two criteria: (1) “[The] ultimate receipt of a benefit that was sought in
bringing the litigation, i.e., the award of a benefit, or [(2)] . . . a
court remand predicated upon administrative error,” Sumner, 15 Vet.App. at
264 (citing Buckhannon, 532 U.S. at 603). Because the Court did not
order the award of a benefit, this opinion will focus on the second Sumner
criterion for attaining prevailing-party status, “a court remand
predicated upon administrative error”. Ibid. In Sumner, the Court held: ”
Because . . . in remanding the matter, the Court did not recognize
administrative error, the remand was not predicated upon administrative
error.” Sumner, 15 Vet.App. at 265. We note that this Court has held
that to demonstrate prevailing-party status where the Secretary has
conceded error, the Court must have predicated its remand on that
concession of administrative error. See, e.g., Briddell v. Principi,
16 Vet.App. 267, 271-74 (2002); Smith (Shannon) v. Principi, 16 Vet.App.
71, 73-74 (2002); Cycholl, 15 Vet.App. at 359.
The appellant argues that he is a prevailing party based on the
second Sumner criterion because of the Court’s finding regarding the
Board’s Savage error. The Secretary maintains that this was not a basis
for remand and that, even if it was, it is not the type of error that
should be sufficient to qualify one as a prevailing party. The second
Sumner criterion, “a court remand predicated upon administrative error” (
here by the Court “recogniz[ing] administrative error”), Sumner, 15 Vet.
App. at 264, has three elements: (1) A court remand; (2) a court
recognition of administrative error; and (3) the remand’s being predicated
on that error.
As to the first element, there is no question that there was a Court
remand in this case. As to the second element, neither party contests
that the Court found error here. We stress that Sumner requires only a
court “recogni[tion of] administrative error”. Sumner, 15 Vet.App. at
265. There is no mention in Sumner of an “acceptable” level of error, and,
indeed, such a test would quickly become unmanageable, involving extensive
relitigation of the merits at the EAJA stage. See
Cullens, supra (Kramer, C.J., concurring); Mahl v. Principi, 15 Vet.
App. 37, 43 (2001) (Steinberg, J., dissenting). Although here there
was no concession of error by the Secretary at the merits stage, as there
was in Briddell, Smith (Shannon), and Cycholl, all supra, the Court
unambiguously determined – even if such a determination was described by
the Court as a noting (“we note”) rather than a holding – that, based on
Savage, supra, the Board had “erred in its continuity-of- symptomatology
analysis” under 3.303(b), McCormick, 14 Vet.App. at 49-50. The Court
need not, and in fact should not, investigate at the EAJA prevailing-
party stage the validity, type, or nature of the administrative error.
Nor should the Court revisit at the EAJA stage the logic of the merits
decision. The Sumner standard is an objective one. It is sufficient that
the Court recognized that there was administrative error. See Briddell,
16 Vet.App. at 272 (“[t]here is not the slightest hint in Sumner or in
any other opinion of this Court that prevailing-party status should be
determined based on something other than what the Court actually did on
the merits”). Accordingly, we hold that the Court “recognize[d]
administrative error” in its merits opinion and that the second element is
satisfied. Sumner, 15 Vet.App. at 265.
The third element of the second Sumner criterion relates to the
connection between the remand and the Court’s recognition of the Board
error. See Briddell, supra. In determining whether a remand is ”
predicated” on administrative error, the Court looks to the underlying
disposition on the merits. We note that in the Sumner case, the Court,
having found no “administrative error” (i.e., the second element), had no
need to address the third element and explain what constitutes a “remand
predicated upon such error”. Sumner, 15 Vet.App. at 265. The issue is,
however, ripe in this case, and we, therefore, do so here. In arguing
that the Court’s Savage finding was not a basis for remand, the Secretary
ignores the fact that in the instant case the Court’s merits opinion (1)
stated that “[f]or the reasons that follow, the Court will deny the
Secretary’s motion and vacate the BVA decision and remand the matter”,
McCormick, 14 Vet.App. at 41 (emphasis added), and (2) expressly cited to
38 C.F.R. 3.303(b) in the “Conclusion”, where the Court “remand[ed]
the matter for expeditious further proceedings and issuance of a
readjudicated decision supported by an adequate statement of reasons or
bases, see 38 U.S.C. 1110, 5107, 7104(a), (d)(1); 38 C.F.R. 3.303(b)
; VBA Letter . . . .” McCormick, 14 Vet.App. at 50 (emphasis added
). Hence, the Court remanded in part in light of its recognition of
the 3.303(b)/Savage error, and the remand was, therefore,
“predicated upon administrative error”, Sumner, 15 Vet.App. at 265. The
third element of the second Sumner criterion for prevailing-party status
is satisfied.
Accordingly, because there is a Court determination of 3.303(b)/
Savage error here and because the Court’s remand language also clearly
indicated that the remand was based on that 3.303(b) error, we hold that
the appellant has attained prevailing-party status due to a “remand
predicated upon administrative error”. Sumner, 15 Vet.App. at 264; see
also Briddell, supra. In light of this holding, there is no need for
the Court to consider whether the appellant was a prevailing party as to
either of the other two grounds for remand here – the Manual M21-1 fire-
related provisions regarding acquisition of VA and service-department
records and the VBA Letter requirements for VA to obtain certain medical
records.
C. Substantial Justification
Under the EAJA, the Secretary has affirmative defenses to a fee
award, one of which is to demonstrate that his position at both the
administrative (BVA) and litigation (Court) stages was “substantially
justified”. See 28 U.S.C. 2412(d)(1)(A) (“court shall award to a
prevailing party . . . fees and other expenses . . . unless the court
finds that the position of the United States was substantially justified” (
emphasis added)), (d)(1)(B); Cullens, 14 Vet.App. at 237-38; Lematta v.
Brown, 8 Vet.App. 504, 506-07 (1996); Doria v. Brown, 8 Vet.App. 157, 161 (
1995). (The other affirmative defense is to ask the Court to “determine[]
that ‘special circumstances make an award unjust.'” Id. at 162.) Once
an appellant has alleged a lack of substantial justification, the burden
shifts to the Secretary to prove that VA was substantially justified in
its administrative and litigation positions. Cullens, 14 Vet.App. at
237; see also Locher v. Brown, 9 Vet.App. 535, 537 (1996); Stillwell v.
Brown, 6 Vet.App. 291, 302 (1994) (holding that substantial-justification
query is one of reasonableness “in law and fact”).
This Court has established the following standard to determine
whether the position of the Secretary was substantially justified:
[T]he VA must demonstrate the reasonableness, in law and fact, of
the position of . . . VA in a matter before the Court, and of the
action or failure to act by . . . VA in a matter before . . . VA,
based upon the totality of the circumstances, including merits,
conduct, reasons given, and consistency with judicial precedent and
VA policy with respect to such position, and action or failure to act,
as reflected in the record on appeal and the filings of the parties
before the Court.

Stillwell, supra; see also Cullens, 14 Vet.App. at 238. The
Secretary argues as to substantial justification that the Court should not
consider arguments about the 3.303(b) Savage ground because it was not a
basis for remand and because “the Board’s misstatement of Savage had no
affect [sic] on the Board’s denial of [the a]ppellant’s claim” (Resp. at
13). Resp. at 8-13. “[R]easonableness is determined by the
totality of circumstances, and not by any single-factor approach.”
Stillwell, 6 Vet.App. at 302. The Secretary fails on these defenses
for essentially the same reasons that the Court held in Part II.B.,
above, that the appellant was a prevailing party. Considering that the
Court explicitly found (1) that “the Board, in its adjudication of the
instant claim, erred in its continuity-of-symptomatology analysis” and (
2) that “the Board misapplied the continuity-of-symptomatology criteria
from Savage” (an opinion issued more than one month before the BVA
decision here), it is clear that the Board did not act “consisten[t]
with judicial precedent”, Stillwell, supra. We thus hold that the
position of the Secretary as to this issue at the administrative stage was
not substantially justified. Hence, we need not address the justification
for the Secretary’s position at the litigation stage. See Cycholl, 15
Vet.App. at 361; see also Elcyzyn v. Brown, 7 Vet.App. 170, 176 (1996).
D. Reasonableness of Fees
“The Court has wide discretion in the award of attorney fees under
the EAJA.” Chesser, 11 Vet.App. at 501 (citing Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983); Chiu v. United States, 948 F.
2d 711, 713 (Fed. Cir. 1991); and Vidal v. Brown, 8 Vet.App. 488, 493 (
1996)). “[T]he ‘product of reasonable hours times a reasonable rate’
normally provides a ‘reasonable’ attorney’s fee.” Blum v. Stenson,
465 U.S. 886, 897 (1984) (quoting Hensley, 461 U.S. at 434). “The [
Court] must determine not just the actual hours expended by counsel, but
which of those hours were reasonably expended in the litigation.” Ramos
v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983). In that regard, the
Court will consider whether the hours claimed were (1) unreasonable on
their face, (2) otherwise contraindicated by the factors for determining
reasonableness itemized in Hensley, 461 U.S. at 430 n.3, or
Ussery v. Brown, 10 Vet.App. 51, 53 (1997), or (3) persuasively opposed
by the Secretary. See Chesser, 11 Vet.App. at 502. This Court “may
consider a number of factors, including whether the work performed was
duplicative, if an attorney takes extra time due to inexperience, or if
an attorney performs tasks normally performed by paralegals, clerical
personnel, or other non-
attorneys”, Ussery, 10 Vet.App. at 53, and “may properly reduce the
number of hours claimed for time spent in duplicative, unorganized, or
otherwise unproductive efforts”, Vidal, 8 Vet.App. at 493.
The Secretary argues here for a reduction in fees of 38.1 hours,
because he asserts that (1) the appellant’s counsel spent too much time (
33.2 hours) on a brief that consisted of six pages of argument and that
contained only two arguments, one that the Court did not address
substantively (the M21-1 argument), and the other that the Court did not
address at all (a reasons-or-bases argument), in a case in which the
record was “merely 106 pages long” (Resp. at 14); and (2) the appellant’s
counsel spent too much time (63.1 hours) preparing for oral argument, and
that much of this time was due to the appellant’s counsel’s inexperience (
and, in an exercise of billing discretion, he should not have billed for
time spent on learning) (Resp. at 14-16). The appellant replies that the
brief dealt with complicated issues and that, therefore, the entire amount
of time was reasonable. Reply at 15-17. He argues further that the hours
spent in preparation for oral argument were reasonable because “after the [
a]ppellant filed his [b]rief, several significant cases, including
Maggitt[, supra], and Sims v. Apfel[,] 120 S.Ct. 2080 (2000)[,] were
issued that materially impacted the appeal before the Court”, and because
such preparation was essential to his counsel’s fulfilling “his ethical
duty to his client to provide diligent representation.” Reply at 16.
Although arguments such as these might in certain cases be viewed as
nothing more than unsupported assertions that should not serve as a basis
to reduce the fees requested, that is not always the case. Under Chesser
, the Court may, sua sponte, reduce fees that appear unreasonable on
their face. In this case, the fees claimed by the appellant do appear to
be unreasonable, both as to the brief and as to the oral argument. In
this respect, the Secretary’s arguments on these points are largely
persuasive, and the appellant has offered little in rebuttal. Therefore,
based on the Secretary’s arguments and in light of the fact that the basis
of the remand here was one recognized by the Court sua sponte and was
not argued at all by the appellant, the Court will reduce the allowable
hours here. However, the Secretary’s request to reduce the amount by 38.1
hours fails to take into account the following two factors: (1) The
appellant’s counsel did, in the appellant’s application, “in a good faith
effort to avoid any question as to time spent for arguably administrative
matters”, reduce by five hours the total hours for which he sought
compensation (Appl. at 8); and (2) the appellant offered a rationale as to
at least some of the hours spent in preparation for oral argument, i.e.,
the need for
his counsel to review two new cases that had been issued after the
filing of his brief (Reply at 15). Accordingly, in the exercise of its
discretion, the Court will reduce by 30 hours the hours requested in the
application, from 149.60 to 119.60 hours.
E. Supplemental Application and Stay Motion
The appellant has filed two motions to supplement his EAJA
application to include attorney fees for the EAJA litigation. The
Secretary has filed an opposed motion for clarification or stay as to
these matters. The Secretary argues that “[a]ny assessment of the
reasonableness of [the] supplemental application is contingent on the
Court’s ruling”; he further notes that “[n]o rule, express or otherwise,
governs this matter in either directing the time for filing of the
supplemental application or the Secretary’s deadline to respond to the
application.” August 2001 Motion at 2. On November 1, 2001, after the
filing of both motions to supplement and the Secretary’s motion, the Court
adopted amendments to Rule 39 of its Rules of Practice and Procedure (
Rules), to add the following:
(b) Supplemental application. An appellant or petitioner whose
application described in subsection (a) of this rule has been granted
in whole or in part may, not later than 30 days after the Court
action granting such application, file a supplemental application for
attorney fees and other expenses in connection with the submission or
defense of such subsection (a) application. See Rule 25.

(c) Response. Within 30 days after the date on which an
application described in subsection (a) or a supplemental application
described in subsection (b) is filed, the Secretary shall file and
serve a response to the application or supplemental application,
stating which elements of the application or supplemental application
are not contested and explaining the Secretary’s position on those
elements that are contested.

In re: Rules 39, 41, and 42 of the Rules of Practice and Procedure, 15 Vet.
App. CCCLX, CCCLXI (2001). In the comment to this Rule change, it is
noted: “Subsection (b) is added to provide specifically for the
submission, once an initial EAJA application is granted, of a
supplemental EAJA application”. Ibid. (emphasis added). Given the
above-quoted amendment to Rule 39 and the comment thereto, the appellant’s
supplemental applications (which deal exclusively with the defense of the
original application) would be considered premature, because they were
submitted prior to a ruling on the initial application, if they had been
filed after the adoption of the Rule 39
amendment. However, because the motions to supplement were filed
before that amendment to Rule 39 was adopted and the Court is here
granting in substantial part the appellant’s initial EAJA application,
the Court will grant the appellant’s motions to supplement his initial
EAJA application and will file as of the date of this opinion the
supplemental applications that were submitted with the motions. Cf.
Stillwell, 6 Vet.App. at 300 (holding that prematurely filed EAJA
application “was not untimely . . . because the appeal period had not run
“). Under Rule 39(c), the Secretary will hereafter have 30 days to file a
response to those supplemental applications. As to the Secretary’s motion
for a stay, given that Rule 39(c) now provides the guidance that he
helpfully sought as to the timing of a response and in light of our
direction that the supplemental applications be filed on the date of the
issuance of this opinion, we will deny the Secretary’s motion as moot.
See Fritz v. Principi, 16 Vet.App. 179, 180-82 (2002) (per curiam
order).

III. Conclusion
Upon consideration of the foregoing analysis and the pleadings of
the parties, the Court grants the appellant’s EAJA application in the
reduced amount of $16,175.98. Pursuant to Rule 39(b), the Court grants
the appellant’s motions to file supplemental applications; the Clerk of
the Court will file the appellant’s supplemental applications as of the
date of this opinion. Under Rule 39(c), the Secretary will have 30 days
to file a response, and under Rule 39(d) the appellant will have 30 days
to file a reply to the Secretary’s response. See U.S. Vet. App. R. 39(b
), (c), (d). The Court denies as moot the Secretary’s motion for a stay
and clarification. In view of the foregoing disposition, there is no
need for the Court to act on either the Secretary’s February 11, 2002,
motion, or the appellant’s February 15, 2002, opposition motion.
APPLICATION GRANTED IN PART.

IVERS, Judge, dissenting: The majority manipulates the clear
language and intent of the underlying decision on the merits in this case
to conclude that the appellant was a prevailing party for purposes of
EAJA. The majority elevates what the Court called a “Miscellaneous
Matter,” related to an issue that the Court expressly stated it did not
review, to a basis for remand. For the reasons stated herein, I find the
manipulation to be disingenuous, and I respectfully dissent.
The majority has determined that the appellant was an EAJA
prevailing party by declaring that the underlying remand was predicated
upon administrative error, recognized by the Court in its statement that
the Board erred in applying the continuity-of-symptomatology criteria.
McCormick v. Principi, __ Vet.App. __, __, No. 98-48, slip op. at 6-7 (
Oct. 17, 2002); see McCormick v. Gober, 14 Vet.App. 39, 49 (2000). In
stretching to reach this conclusion, the majority has the tail wagging the
dog.
In the decision on the merits in the underlying appeal in this case,
the Court stated the following: “In this case, the Board denied the [
appellant’s] claim as not well grounded. . . . The appellant does not, in
essence, challenge the Board’s negative determination on well
groundedness, and, in view of the Court’s holding in part II.B., below,
we need not review that determination.” McCormick, 14 Vet.App. at 43 (
emphasis added). In part II.B. the Court held (the dog) that the
provisions of a VBA letter were substantive in nature, having the force
of law, so as to require that VA request copies of service medical records
and VA medical records before making a determination as to whether a claim
is well grounded. Id. at 49. As noted by the majority here, the Court
remanded for compliance with the VBA letter. See McCormick, __ Vet.App.
at __, slip op. at 2.
At the end of the decision on the merits, as a preventive measure and
cautionary note entitled “Miscellaneous Matter,” the Court “noted” (the
tail) that the Board, in its decision, had misapplied criteria for
determining continuity of symptomatology in finding that the appellant’s
claim was not well grounded. Id. at 49-50. The Court had stated that it
was remanding for further development, and then advised the Board not to
misapply, as it had before, the criteria for determining continuity of
symptomatology during readjudication of the claim. The latter
instruction was advisory in nature because the Court had clearly stated
that it need not review the unchallenged determination on well
groundedness.
The majority in this EAJA matter now elevates what was non-
precedential and advisory to a basis for remand on the merits. The fact
that the Court, in the decision on the merits, stated that the Board’s
determination on well groundedness was not under review is certainly
sufficient support for a conclusion that the Court’s sua sponte
comments regarding a shortcoming in the Board’s process of making that
determination were not a basis for the remand. In other words, contrary to
the far-
reaching conclusion arrived at by the majority, the remand effected by
the decision on the merits was not predicated upon the administrative
error recognized by the Court in its advisory note.
The majority’s manipulation of the decision on the merits in this
case is analogous to a post hoc rationalization, which is firmly
prohibited in litigation. See Martin v. Occupational Safety & Health
Review Comm’n, 499 U.S. 144, 156 (1991) (“‘Litigating positions’ are not
entitled to deference when they are merely appellate counsel’s ‘post hoc
rationalizations’ for agency action, advanced for the first time in the
reviewing court.”) It is not unlike a post Previous HithocNext Document rationalization for the
majority now to take what it said in the decision on the merits in this
case and turn it upside down to serve a particular result.
It is my opinion that the appellant was not a prevailing party in the
litigation underlying this EAJA application, because the remand was not
predicated upon administrative error. The EAJA application should be
denied.

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